Hohfeld and the analysis of jural relations

The word right is a homonym. It is used to denote several separate ideas, and the use of one word for all of them obscures the distinctions and leads to confusion sooner or later. Hohfeld's remedy is to allot to each idea a term of its own.

Four ordinary-language formulae identify the four positions, and they are the fastest way into the scheme:

| Formula | Position | |---|---| | You ought | Claim (Hohfeld's right) | | I may | Liberty (Hohfeld's privilege) | | I can | Power | | You cannot | Immunity |

Jural correlatives represent the presence of a position in another person.

| | | | | |---|---|---|---| | Right | Privilege | Power | Immunity | | Duty | No-right | Liability | Disability |

Thus right is the presence of duty in another, and liability is the presence of power in another.

Jural opposites represent the absence of a position in oneself.

| | | | | |---|---|---|---| | Right | Privilege | Power | Immunity | | No-right | Duty | Disability | Liability |

Thus no-right is the absence of right in oneself, and disability is the absence of power in oneself.

Jural contradictories are the third set, which Hohfeld did not name but which Professor Glanville Williams's presentation makes visible: a position in X implies the absence of its contradictory in Y. Claim in X implies the absence of liberty in Y, and power and immunity are contradictories.

One rule of method. A jural relation between two parties should be considered only between them, even though the conduct of one may create another jural relation between him and someone else. In Chapman v Honig the defendant's termination of the plaintiff's tenancy was lawful — a liberty — as between them, while at the same time unlawful, a breach of duty, as between the defendant and the court, which was a contempt.

The clue to claim lies in duty, which is a prescriptive pattern of behaviour. A claim is simply a sign that some person ought to behave in a certain way.

The statement X has a claim is vacuous; the statement X has a claim that Y ought to pay him ten pounds is meaningful, because its content derives from Y's duty.

Is the correlation perfect? Every claim implies a correlative duty, since it has no content apart from the duty. Whether every duty implies a correlative claim is doubtful, and this is the standing controversy:

• Austin admitted duties with no correlative claims and called them absolute duties; his examples come from criminal law.
• Salmond thought every duty must have a correlative claim somewhere.
• Allen supported Austin; Professor Glanville Williams treats the dispute as verbal.

Duties in criminal law are imposed with reference to, and for the benefit of, members of society, none of whom has claims correlative to those duties. Statutory duties furnish other examples, and it rests on the interpretation of each statute whether the duties it creates are correlative to any claims. In Arbon v Anderson a prisoner affected by a breach of the Prison Rules had no action, because he had no claim.

Why claims are not necessary to duties. Conduct is regulated by the imposition of duties. Claims may assist, but if the end can be achieved otherwise there is no reason why the mere fact that Y is under a duty with regard to X should confer on X a corresponding claim. Nothing prevents it being the law that every breach of duty is dealt with by the machinery of the State — but such a state of affairs would stretch State machinery to breaking point. Where duties are of private concern, remedies are best left to individuals; and it is expedient to give aggrieved persons some satisfaction, usually by way of compensation. Every system has to decide which breaches the public authorities take up on their own motion and which are left to private persons.

Hohfeld distinguished the freedom to do or not do something from claim, and called it privilege; the term liberty is preferred.

The bowler hat. X's so-called right to wear a bowler hat consists of a liberty to wear the hat and another liberty not to wear it.

Duty and liberty are opposites — but only where the contents conflict. If X is under a duty to wear the hat, there is no liberty not to wear it. If he is under a duty not to wear it, there is no liberty to wear it. But if X, having the liberty to wear his hat, puts himself under a duty to wear it, liberty and duty are harmonious and coexist. They are jurally opposite only when the content of one is irreconcilable with the content of the other.

The cases:

• Mills v Colchester Corporation — the owners of an oyster fishery had always exercised a discretion in granting licences to fish. That implied a liberty to grant and a liberty not to grant, and therefore the absence of a duty to grant; and if there was no duty, the plaintiff could have no claim.
• Osborne v Amalgamated Society of Railway Servants — for reasons of policy, the liberty of a member of Parliament to vote as he chooses cannot be overridden by a contractual duty to vote in a certain way.
• Redbridge London Borough v Jacques — where there is a public duty created by statute, this prevents the conferment of a liberty to do what the duty forbids; the local authority's inaction over the stall could not confer a licence.

Claim and liberty distinguished — the central lesson. A claim implies a correlative duty; a liberty does not. X's liberty to wear the hat is not correlative to a duty in anyone. There is indeed a duty in Y not to interfere, but that duty is correlative to X's claim against Y, which is a different thing from the liberty.

The proof that they are separable: X may contract with Y that Y may prevent him from wearing the hat, saying he will nevertheless try. If X evades Y and leaves wearing the hat, he has exercised his liberty and Y has no complaint. If Y prevents him, X cannot complain, because he has extinguished by contract his claim that Y shall not interfere. The claim can be extinguished without affecting the liberty.

The case law is the examinable half:

| Case | Liberty, but no claim not to be prevented | |---|---| | Musgrove v Chun Teeong Toy, re-affirmed in Schmidt v Secretary of State for Home Affairs | An alien at common law has the liberty to enter British territory, but no claim not to be prevented. | | Chaffers v Goldsmid | A person has the liberty of presenting a petition to Parliament through his member, but no claim that the member shall comply. | | Bradford Corporation v Pickles | A landowner has the liberty of abstracting subterranean water, but no claim against another who abstracts it first. | | Cole v Police Constable | A non-parishioner has a liberty to be in an extra-parochial church, but no claim not to be prevented; his ejection gave him no cause for complaint. | | Piddington v Bates | A picket's liberty to stand at the rear entrance was not supported by a claim not to be prevented, so pushing past the constable was an obstruction. |

Where the failure to distinguish leads. In Thomas v Sawkins the tribunal argued that a liberty to attend a public meeting was a right, and therefore that there was a duty not to prevent the person concerned. The conclusion is a non sequitur, because it fails to perceive the distinction between the two uses of the word right; the way to reconcile the decision with established law is to say that it has in effect created a new rule for policemen. The trade-competition cases show the same fallacy: there is a duty not to interfere by smashing up the plaintiff's shop, but no duty not to interfere by underselling him. The real issue is the delicate policy question of how far one person's liberty to interfere is allowed, and the language of duties and claims masks it.

Liberty as law. Liberty begins where duty ends, and some have maintained that freedom is outside the law — Pound declared that liberty is without independent jural significance and Kelsen said that freedom is an extra-legal phenomenon. Against that, a liberty may arise in three ways: because legislators and judges have not yet pronounced on a matter, so that it is the residue left untouched by encroaching duties, as with invasion of privacy; from a deliberate decision not to interfere; or from the deliberate abolition of a pre-existing duty.

A power is the ability to alter a legal position.

The will, analysed. Making a will involves a liberty to make one and another liberty not to; claims against others not to be prevented from making one; powers to alter the legal conditions of the persons named; and immunities against being deprived of will-making capacity. The power itself has no duty correlative to it — it would be wrong to speak of a right in the testator correlative to the executor's duty, because the will takes effect from death, and when the testator dies his claims cease.

The cases:

• Pryce v Belcher — a disqualified voter tendered his vote, which the returning officer refused. Tendering the vote was the exercise of a power, which imposed on the officer a duty to accept it, and the refusal was a breach of that duty. But the power carried with it neither the liberty of exercising it nor a claim to the fulfilment of the duty, so his action failed.
• David v Abdul Cader — the defendant refused to exercise a statutory power to grant a cinema licence. The Supreme Court of Ceylon rejected the action on the ground that until the power was exercised the plaintiff had acquired no right. The fallacy is clear: the right he would have acquired is the liberty to run his cinema with appurtenant claims and powers, and whether he acquires it is independent of whether the defendant was under a duty to exercise the power. The Privy Council reversed on that very ground.
• Ashby v White — the right to vote is a power coupled with a liberty to exercise it; the whole point was whether there was a claim not to be prevented, and the decision in effect created one, though the reasoning was fallacious.
• Niblett v Confectioners' Materials Co — the statutory implied condition that a seller has a right to sell the goods means a power to pass title. Holding that the company had no right to sell because a third party could have restrained the sale confuses power with liberty: the power to pass title is independent of whether there is a duty not to exercise it.

Duty and liability distinguished. If X deposits or lends a thing to Y, there is no duty in Y to restore it until X makes a demand. Before the demand Y is under a liability to be placed under the duty, and the demand itself is the exercise of a power. The distinction decides limitation questions: in Re Tidd the period ran only from the demand for restoration, and in Joachimson v Swiss Bank Corporation time ran from demand and not from the original deposit.

Subjection. If X promises to pay Y a sum tomorrow should it rain, there is no duty until the event occurs; in the meantime X is subject to be placed under a duty. This is not liability to a power but to a non-volitional event, and it forms the basis of much of the law of insurance.

Immunity denotes freedom from the power of another; disability denotes the absence of power.

The four relations of the second square: power and liability are correlatives; immunity and liability are opposites; power and immunity are contradictories; immunity and disability are correlatives.

In Hurst v Picture Theatres Ltd a liberty to be on premises coupled with an interest was held to confer an immunity along with the liberty, so that it could not be revoked.

Immunity is not a claim. An immunity need not be protected by a duty in another not to attempt to invade it. If X is immune from taxation, the revenue authorities have no power to place him under a duty to pay; a demand is ineffectual, but X has no remedy against them for having made it. In Kavanagh v Hiscock the statute conferred on pickets an immunity from prosecution or civil suit, but no liberty to stop vehicles on the highway and no claim not to be prevented from trying.

Immunity is not a liberty. The diplomatic envoy is the illustration: he is treated as capable of committing a breach of duty and is under a duty to pay damages, although immune from process to compel him. He has no liberty to do the act and no liberty not to pay damages, but he has the immunity all the same. Dickinson v Del Solar held that the sanctionless duty to pay damages was enough to involve his insurance company in responsibility, and that if he pays voluntarily he cannot recover, since the duty to pay exists.

Hohfeld called his scheme fundamental, and it has been argued that it is not fundamental enough.

• Its virtue is that it has attracted attention to the underlying structural properties of legal notions. Its vice, though unintended, is more significant: preoccupation with the semantic analysis of notions has distracted attention from deeper inquiries into the propositional and logical structures of legal thought. Inquiries about the meanings of notions are important but totally inadequate for legal purposes, because legal arguments finally base themselves on whole propositions and thoughts — principles and ideas — and not on individual notions.
• The attractiveness of the scheme stems from its apparent symmetry and precision, but the symmetry tells us little about the logical relationships between the propositions stating basic legal relationships, because it is presented in terms of the relations themselves rather than as propositions about them.
• The scheme is deceptive because it disguises the fact that basic legal relationships are often triadic and sometimes complex. The dyadic relation is the jural minimum. The three elements usually related in triadic relations are two persons or groups and the State — and in common law practice the State has been treated as a person, as have corporate bodies.
• Hohfeld's analysis was a semantical one, based on the meaning of the words.

• The table question — reproduce both tables accurately, define correlatives and opposites in the two standard sentences, then give the four conclusions the scheme yields: that a person's right expresses a wish that another has a duty to obey it; that a person's freedom expresses a right that he may do something to change his legal position; that a power expresses a right that he can alter another's legal position; and that a disability expresses a wish that another must not alter his legal position.
• The problem question. Give the facts a Hohfeldian reading: identify the two parties, name the position of each, and say what is not present — the answer is usually that a liberty exists without a claim, or a power without a liberty.
• The critique. A first-class answer does not stop at the tables. Give the criticism: semantic rather than propositional, and dyadic where legal relations are often triadic.